AI tools, such as ChatGPT, have become a big part of modern life. They are also becoming more and more relevant in the workplace. The use of AI entails great opportunities, but also a few risks. So far, there is not much case law yet that covers the use of AI by employees. Earlier this year, though, the Hamburg Labor Court made a ruling for the first time on how some co-determination rights under the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) apply to the use of ChatGPT.
The Hamburg Labor Court’s Decision
The employer in this case encouraged its employees to use ChatGPT on a voluntary basis. To this end, the company sent out guidelines and a manual on how to use ChatGPT via the employees' web browsers. The group works council considered this a violation of its co-determination rights.
The labor court rejected the claims and held that the group works council's co-determination right was not violated. The key reasons for this were (1) that ChatGPT was not installed on the company's devices, (2) the employees used their own private accounts, and (3) there was already a shop agreement in place on the use of web browsers. This preliminary injunction decision makes it worth looking more closely at the works council's co-determination rights regarding the use of AI. Here are some of co-determination rights to think about:
Co-Determination Rights to Consider
Sec. 87 of the Works Constitution Act is one of the most important laws on co-determination. It lists the works council's co-determination rights in many key areas of the day-to-day. The works council can ask the employer to negotiate a shop agreement in these matters, i.e. a binding agreement for the company. This means that any decisions made by the employer without consulting the works council are not valid. When it comes to AI tools, the most important sections are sec. 87 No. 1, No. 6, and No. 7.
Order and employee conduct, No. 1
- Regulations concerning how employees should act and behave in the company are subject to co-determination. The works council must be involved, and a shop agreement must be concluded.
- However, using AI tools such as Chat GPT does not fall under this category because they do not affect how employees behave, just how the work is to be done and what the work result is.
Monitoring employee behavior and performance, No. 6
- Technical devices can already be subject to co-determination if they are not intended to monitor employee behavior and performance but are objectively capable of doing so.
- When it comes to AI tools, it is important to take a close look to see if they meet this requirement. For instance, if the employer asks employees to use AI programs installed on the company's devices (which was not the case in the Hamburg ruling), the employer has access to information such as who uses the AI tool, when, for what reason, and how often. This means the employer can monitor the employees' behavior and performance. This triggers a co-determination right.
- Keep an eye on web applications. Even if the employer does not know the employee's account data because it is a private account, it can still monitor the employee by tracing the browser history. In this case, the works council has the right to be involved, unless there is already a special shop agreement in place (like a shop agreement on using web browsers, as was the case in the ruling).
- Also, the court decided that if the employer does not see information from private accounts, but asks the employee to identify AI-generated results, there is still no right of co-determination because of surveillance. Since monitoring does not come from the AI tool itself, but from the employee, it does not qualify as surveillance.
Health protection, No. 7
- So far, there is no proof that using AI in the workplace poses a health risk to employees. That is why a corresponding right of co-determination from an employee health perspective was rejected by the court.
Additional Points to Consider
- If employers are planning to use AI tools, they should consider informing the works council at an early stage and consult with it in good time. It is important to get the works council involved early on, if a co-determination right exists, so it can have an impact with their suggestions.
- On top of that, the works council might have a right to get an expert to assess how AI is being rolled out. This only applies if the company does not have the right expertise, for example if the company lacks an IT department. If they want to bring in an external expert, though, the works council needs to agree on this with the employer. The employer will then have to cover the costs for the expert.
It is important to remember that even small differences in the facts of a case can lead to a different legal assessment of the works council's co-determination rights. As more and more companies allow (or even require) their employees to use AI, it is likely that we will see a lot more case law on co-determination rights in the future.